Zheng v Minister for Immigration & Multicultural Affairs
[1999] FCA 731
•04 JUNE 1999
Zheng v Minister for Immigration & Multicultural Affairs [1999] FCA 731
Migration
Zheng v Minister for Immigration & Multicultural Affairs [1999] FCA 731
MIGRATION - application for review of decision of Refugee Review Tribunal ("the RRT") - whether failure to make findings on material questions of fact - where ambiguous findings on sanctions suffered in past - whether subsequent error of law in finding absence of persecution - whether RRT properly addressed the question whether there was a real chance of persecution for a Convention reason - Catholic practising in the non-official underground Catholic Church
WORDS AND PHRASES - "material question of fact", "persecution", "real chance test"
1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees Article 1A(2)
Migration Act 1958 (Cth) ss 430(1)(c), 476(1)(a), 476(1)(e)
Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24, applied
Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402, applied
Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567, followed
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, applied
MING XIONG ZHENG v
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 1126 OF 1998
TAMBERLIN J
SYDNEY
4 JUNE 1999
BETWEEN: MING XIONG ZHENG Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
#DATE 04:06:1999
JUDGE:
TAMBERLIN J DATE OF ORDER: 4 JUNE 1999 WHERE MADE: SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 1126 OF 1998
THE COURT ORDERS THAT:
1. The application for review is granted.
2. The decision of the Refugee Review Tribunal is set aside and the matter is remitted to the Refugee Review Tribunal for consideration in accordance with law.
3. The respondent is to pay the applicant's costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 1126 OF 1998
BETWEEN: MING XIONG ZHENG Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
JUDGE: TAMBERLIN J DATE: 4 JUNE 1999 PLACE: SYDNEY
REASONS FOR JUDGMENT
1 The applicant is a citizen of the People's Republic of China who arrived in Australia on 1 August 1996. On 25 October 1996 he lodged an application for a protection visa, with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (Cth) ("the Act"). On 6 February 1998 a delegate of the Minister refused to grant a protection visa and on 25 February 1998 the applicant sought a review by the Refugee Review Tribunal ("the RRT"). The matter was heard on 3 September 1998 when the RRT affirmed the decision not to grant the visa.
2 An application for review has been made to this Court pursuant to s 476 of the Act.
3 The applicant claims that he is a refugee within the meaning of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees ("the Convention"). Article 1A(2) of the Convention defines a refugee as any person who:
" ...owing to well-founded fear of being persecuted for reasons of ... religion, ... is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country;..."
4 The applicant was born on 29 June 1957. He is a practising Catholic. While in China he was a member of an underground Catholic Church. It was accepted that he would not change his religious beliefs if he were to return to China. The RRT accepted that the applicant fears persecution in China namely arrest and severe punishment on account of his religion, and noted his claim that because he left China and made an application for refugee status his position will be worse if the authorities find out. The RRT accepted that Chinese authorities have made efforts over several years to inhibit the expansion of underground churches, to repress their activities, and to have them register and combine into an officially registered religious organisation under, in the case of Catholics, the arm of the Catholic Patriotic Association. The applicant claimed to have had adverse attention from the authorities as early as 1984 when his church was banned. His father was denounced and goaled and the applicant was detained for 15 days. He also claimed to have been detained and set to work in a quarry for most of 1987 and to have been tortured and sent to a labour farm for three years from June 1989 to September 1992.
5 The RRT entertained substantial doubt as to the claims by the applicant, particularly in the light of a letter dated 12 August 1998 from a person who is described, in the English translation of the letter, as Cardinal Ruo Wang Yang, General Church Region of Fujian Province of China. The RRT decision identifies the writer by the Latin translation as Joannes Yang Su Tang, and refers to him throughout its reasons as "the bishop". In the above letter, the writer certifies that the applicant originated from Fujian and was baptised a Catholic on 15 August 1982. The letter states that the applicant is married and is a good disciple who devotedly believes in the Roman Catholic faith. There is a description of his wife and family and a statement as to the dates on which they were baptised. Presumably this comes from local records available to the Cardinal. The letter states that Mr Zheng was an executive member of the local church assisting the local church do a lot of work. He read the Christian doctrines to non-believers, helped them to believe in the Lord, get baptised, and become "the humble servants of the Lord". He also looked after the sick and the dying, praying for them, comforting them in bearing their pain and going to the "world of peace". His two sisters are described as devoted sisters and missionaries. They assist the church giving lessons on doctrine and answering questions in children's classes. They practise their faith and watch the education of the class. In the final paragraph of the letter the following statement appears:
"Ming Xiong ZHENG is now residing in Australia and will certainly meet with difficulties. The father of your Church is kindly requested to assist to request the Australian government to permit him to stay in Australia and work and not to deport him back to his country of origin." (Emphasis added)
6 No doubt is cast on the authenticity of this letter.
7 It was accepted by the RRT that the applicant has been a practising Catholic since his arrival in Australia and that he previously belonged to the "underground Catholic Church", which is part of the Universal Roman Catholic Church, which is quite distinct from the "Patriotic Church" which operates openly and with official Chinese government approval.
8 While the RRT accepted that the applicant was active in the underground church it did not find it "plausible" that his role was as prominent or as indispensable as he claimed it to be. It did not accept his work was crucial to the attraction of new converts and expansion of the group. The RRT referred to the applicant's assertion that the authorities in March 1996 were interested in him. It considered this statement to be implausible and self-serving.
9 After referring to the above matters the decision-maker said in an important paragraph (p 21-22):
"The applicant claimed to have been arrested, detained and variously punished three times, around March 1984, during most of 1987 and from June 1989 to September 1992. The Tribunal has only the applicant's own assertions that these punishments occurred but the applicant was consistent and credible in his accounts of them and they stand uncontroverted by any direct evidence. Nevertheless, the Tribunal regards it as significant that the bishop did not mention any past difficulties that the applicant had with the authorities: he merely remarked, in the context of the applicant's being in Australia, that he `will certainly meet with difficulties.' This statement is in the future tense and the bishop does not spell out the grounds for his concern: one can only speculate whether his concern stems from prior difficulties in China or whether it relates only to some consequences of the applicant's absence from China and, possibly, his seeking protection in Australia. The Tribunal therefore has some doubt whether the applicant did in fact have a history of problems with the authorities. The Tribunal gave the benefit of the doubt to the applicant and accepts that the applicant suffered sanctions at the hands of the authorities." (Emphasis added).
10 The RRT went on to say:
"The Tribunal notes that some three and a half years had elapsed following the applicant's claimed release from detention in September 1992 until March 1996 when he was warned that the government was going to take action; according to his statement lodged 29.10.1996, during this time the applicant's obligation to report to police had been eased from weekly to once a season. It is not credible that with this close monitoring of the applicant, the authorities, despite the precautions which the applicant said he took in continuing underground church activities, would not have known of the existence of the activities or would not have discovered them until 1996. The claimed sudden move against the applicant which the applicant claimed to fear does not appear to the Tribunal to be consistent with the increasing latitude the authorities had allowed the applicant during this period. The Tribunal is not satisfied that there were plausible grounds for the applicant's fear of being specifically targeted by the authorities in March 1996 or that his flight from them was justified." (Emphasis added)
11 The RRT did not find the applicant's evidence concerning his departure from the country persuasive or plausible, and did not accept his explanation how it was possible for him to be issued with a passport in his own name and with his own date of birth, but with an identification number which did not accord with the number on his own identification card. The decision-maker concluded that the fact that religious congregations are required to register does not of itself necessarily amount to persecution of members of the congregations, and that the essential differences between the underground and Patriotic churches relate not to religious belief or practices but to the manner of governance of the church. The RRT stated that the applicant practised his religion up to the time he left his village and that his underground church has continued to operate and is still operating. The decision-maker states that there is also the possibility of worship at a registered Patriotic Church only six kilometres from the applicant's village. The RRT said it was therefore not satisfied that the applicant had been prevented from practising his religion nor that he suffered any restriction in the practice of his religion which amounted to persecution for a purpose of the Convention. It did not consider that he would suffer such detriment if he were to return to China. The RRT was not satisfied that the applicant was wanted by authorities, although it accepted that he might suffer some minor local administrative sanctions if he had not obtained clearance from his work unit to leave the country. However, it was considered that such non-discriminatory enforcement of administrative requirements of general application were not within any of the grounds which attract Convention protection.
12 Having regard to the above views, the RRT was not satisfied that the applicant was a person to whom Australia has protection obligations under the Convention.
Grounds of appeal
13 In the hearing before this Court, three grounds in substance were advanced. I will now turn to consider each of these.
1. Failure to make findings on material questions of fact: ss 430(1)(c) and 476(1)(a) of the Act.
14 The submission is that the RRT failed to set out its findings on the questions of fact as to whether the applicant had been arrested, detained and variously punished three times: around March 1984, during 1987, and from June 1989 to September 1992. Section 430(1)(c) of the Act relevantly provides:
"430(1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:...
(c) sets out the findings on any material questions of fact; ..."
15 Under s 476(1)(a) an applicant may seek review of a RRT decision by the Federal Court on the ground that "procedures" that were required by the Act or the Regulations to be observed in connection with the making of the decision were not observed. It is now settled law that a failure to comply with s 430(1)(c) amounts to a failure to observe a procedure and therefore a permissible ground for review by this Court under s 476(1)(a) of the Act.
16 There are a number of decisions of this Court dealing with the necessity to make specific findings. As Wilcox J pointed out in the Full Court decision of Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 at 27:
"One of the purposes of s 430 is to ensure that unsuccessful applicants for a protection visa are told why their application has failed; if the reason, or one of the reasons, was that the tribunal rejected a significant factual claim, the tribunal must say so and indicate the factual material on which the adverse finding was based."
17 Another important aspect of the duty to make findings on material questions of fact and to set out reasons for reaching a conclusion, is to ensure that the parties are able to consider their position with respect to an appeal. Unless specific findings are made on the significant issues then it will not be possible to determine whether any error has been made or whether the reasoning process has proceeded on an erroneous factual or indeed legal basis. It is not necessary, of course, to make findings on every disputed question of fact thrown up by the evidence and argument. However, it is essential that the findings and reasons deal with the substantial issues on which the case turns, to use the language of Davies J in Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 at 414.
18 The importance of making specific findings on essential factual matters and the importance of past treatment were emphasised by the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 at 579-580 (per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ) where their Honours said:
"... in determining whether there is real chance that an event will occur or would occur for a particular reason, the degree of probability that similar events have or have not occurred, or have or have not occurred for particular reasons in the past, is relevant in determining the chance that the event or the reason will occur in the future. If, for example, a tribunal finds that it is only slightly more probable than not that an applicant has not been punished for a Convention reason, it must take into account the chance that the applicant was so punished when determining whether there is a well-founded fear of future persecution."
19 Unless clear findings are made on essential claims by an applicant as to claims of actual punishment suffered in the country of nationality, the RRT cannot properly perform the function of making a determination or forecast as to whether there is a real chance that the applicant might be persecuted if returned. Experience teaches that past conduct is often relevant when attempting to assess the chances of repetition.
20 In the present case the applicant made specific claims as to particularised events. The first claim is of his detention for fifteen days in March 1984 as the result of denunciation for having illegal religious gatherings. This detention was said to have been made by the Public Security Bureau. The second claim is that in around January 1987, the applicant encouraged people to refuse to co-operate with religious organisations set up by local authorities and was arrested and sent to a quarry for "labour reform" where he was held until the end of 1987. The third claim is that in early 1989 the applicant had sought to spread the gospel, and after he gave a speech at the university he was arrested on the grounds of being "anti-religion" and sent to a labour camp for over three years where he was tortured and badly mistreated. These claims lie at the heart of the case made out by the applicant. The duration and intensity of maltreatment in the past may be indicative as to whether there is a risk of future danger.
21 The way in which the RRT approached these factual claims was to refer to the three specific claims, and then to say that the applicant was consistent and credible in his accounts of them and that they stood "uncontroverted by any direct evidence". This is a significant conclusion. There is then a reference to the RRT considering it significant that the Bishop did not mention any past difficulties which the applicant had with the authorities, but only referred to "difficulties" in the future tense. It is pointed out by the RRT that the Bishop did not spell out the grounds for his concerns as to the nature and extent of the difficulties on the applicant's return. It then says that a decision-maker could only speculate whether the Bishop's concerns stem from prior difficulties. The decision-maker then says that he has some doubt whether the applicant in fact had a history of problems but concedes apparently with some reluctance that the benefit of the doubt has been given to the applicant. The applicant is entitled to more than this. He is entitled to a finding if the evidence so requires. There is then the statement that the RRT "... accepts that the applicant suffered sanctions at the hands of the authorities." If this is a reference to the imprisonment and torture claimed by the applicant it is somewhat of an understatement.
22 There is no description as to what specific sanctions were "accepted" by the RRT, albeit with some doubt. There is no specific finding as to whether any of the incidents occurred or whether the conclusion reached was that the applicant suffered some other sanctions. The reader is not given the benefit of knowing the nature, extent and seriousness of the "sanctions" found. The position is further shrouded in doubt because the account of the applicant is referred to as credible and uncontroverted by any direct evidence. The extent of the doubt engendered in the mind of the decision-maker by the lack of reference in the Bishop's letter to past "difficulties" is far from clear. A doubt is expressed as to whether the applicant had any problems at all with the authorities. This statement lends support to the view that in its conclusion accepting that the applicant suffered sanctions, the substance is that there was some form of problem with the authorities but it is not a finding that any of the three specific incidents claimed by the applicant occurred in fact.
23 It is necessary, of course, to read the above statements of the RRT in context. However, the relevant context is that specific incidents were described involving claims of detention and torture and there is simply no specific finding on these incidents. It is not enough to refer in general terms to the three incidents and then to express a general conclusion to the effect that some indeterminate sanctions were experienced by the applicant. There is no finding on the question of detention and torture raised by the applicant. Nor is there a finding on the question of whether the sanctions found were imposed in the context of religious activities. Another part of the relevant context is that the RRT noted in the following paragraph that some time had elapsed from the claimed release from detention in September 1992 until the applicant's flight from China in March 1996. There is speculation that the authorities must have known of the underground activities and there is a general reference to increasing latitude being given to the applicant. These are findings which are specific to the applicant and are reached as the result of general country Intelligence. The RRT then concludes that it was not satisfied there were plausible grounds for the applicant's fear of being specifically targeted by the authorities in March 1996 or that his flight was justified. The latter conclusion, of course, is dependent on precisely what the RRT had in mind as to the "sanctions" which it found that the applicant has suffered at the hands of the authorities. If the finding was that the specific claims and details given by the applicant were accepted then this could impact on the RRT's view as to the existence of grounds for the applicant's fear in March 1996. The exercise is essentially one of balance and prediction and that exercise, as the High Court observed in Guo, in turn is affected by the nature and extent of past punishment which has been found to have occurred.
24 Accordingly, in my view, the reasons for decision disclose that there has been a failure to make essential findings as to each or any of the three incidents. Because these matters are of primary importance to the reasoning in the decision, this failure amounts to a breach of s 430(1)(c) of the Act and requires that the RRT decision be set aside.
2. Error of law: s 476(1)(e) of the Act - "persecution"
25 It is submitted that the RRT erred in law in reaching the conclusion that the applicant had not been prevented from practising his religion or suffered restriction in the practice of his religion so as to constitute persecution for a Convention purpose. The finding of the RRT on the question of "persecution" as indicated above, depends on what findings the RRT made in relation to the three principal matters relied on by the applicant. Because no findings were made on the applicant's specific allegations, it was not possible for the RRT to perform its task, and properly assess the prospects of persecution on return. Accordingly there was an error of law in the RRT finding an absence of persecution when it had not made the essential findings on the claims raised by the applicant.
3. Error of law: s 476(1)(e) of the Act - real chance test
26 The submission is made that the failure of the RRT to provide reasons in relation to the applicant's claim of arrest, detention and punishment and to make findings on those matters, makes it impossible to determine whether it has properly applied the real chance test. Reference is made to Guo.
27 The function of findings of fact on essential matters to enable a reviewing or appellate body to properly consider the decision in question was adverted to by Deane J in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367 where he said:
"When the process of decision-making ... is not disclosed, there will be a discernible breach of such a duty [to act judicially] if a decision of fact is unsupported by probative material. When the process of decision-making is disclosed, there will be a discernible breach of the duty if findings of fact upon which a decision is based are unsupported by probative material and if inferences of fact upon which such decision is based cannot reasonably be drawn from such findings of fact."
28 In my view these remarks are apposite in the present case to the making of generalised and ambiguous findings to the effect that a decision-maker is prepared, although with doubt, to accept that some form of sanctions were suffered by an applicant at the hands of the authorities. Without the foundation of factual findings it is not possible to discern whether inferences were open to the decision-maker whose reasons are under review. For these reasons I consider that the failure to make and express the necessary specific findings of fact prevented the RRT from properly performing its duty to determine whether there was a real chance of persecution for a Convention reason.
Conclusion
29 The application for review should be granted. The decision of the RRT should be set aside. The matter should be remitted to the RRT for consideration in accordance with law. The respondent should pay the applicant's costs.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.
Associate:
Dated: 4 June 1999
Counsel for the Applicant: Nicholas Poynder Solicitor for the Applicant: Legal Aid Commission of New South Wales Counsel for the Respondent: Timothy Reilly Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 30 April 1999 Date of Judgment: 4 June 1999
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